parties; and the inquiry occurs first of all-can a claim against the national Government be, under the Constitution alone, the subject-matter of a case at law or equity, or of a controversy within the judicial power?1

It is admitted by all that, if Congress will provide for the settlement and satisfaction of any claims or demands against the United States, they may entrust the adjudication of such claims to the judiciary, and by consenting that the United States shall become a party before the national judicial tribunals, originate cases at law or equity, and controversies to which the United States is a party. But it does not appear how, anterior to such legislation, the United States, or the national Government as its representative, can be a party in

even a sort of necessity, in regarding the claim as one to be made against either the State in which the escaped slave should be found or the national Government, and the delivery as an act resulting from the duty of that State or of that Government, correlative to the owner's right. The slave being regarded as the object, only, of action, and never as the subject of rights, the claim would necessarily be against some third party as the legal person refusing to fulfill the obligation correlative to the owner's right in respect to that object. Such a person might, perhaps, be found in the State wherein the slave is found or in the Government of the United States. Story says, 16 Peters, 616:-"It is plain, then, that where a claim is made by the owner out of possession for the delivery of the slave, it must be made, if at all, against some other person, and inasmuch as the right is a right of property capable of being recognized and asserted by proceedings before a court of justice between parties," &c., &c. (And compare Coulter, J., in Kauffman v. Oliver, ante, p. 495.) It will hereinafter be argued that as no natural person can, in view of this provision, be considered as a chattel, the fugitive from labor cannot be considered simply as the object of the rights of others, whatever may be the law of the State from which he may have fled, and that his status or condition is determined always by the law of the State in which he is found, subject to the effect of this provision, which views him as a person sustaining a legal relation towards another person in which he owes service or labor, and therefore designates him as a legal person whose obligation is to be established on claim. Being so regarded, the claim of the person to whom such service or labor may be due, under the provision, may be like the claim of a lord against his vassal, or, of a master against his servant; which, when denied, is denied by the bondman himself, while courts, whether State or national, holding jurisdiction over the territory wherein they may both be found, may apply the provision as private law, i. e., national municipal law, having a limited personal extent, and international effect, and those courts will then make the delivery provided for, when the claim is established in the name of the law, i. e., the constitutional provision in this case, without reference to the State in which the fugitive may be found, or to the Government of the United States, as parties in interest.

1

Not every question arising under the Constitution is a case or a controversy within the judicial power. See Marshall's argument in Robbins, or Nash's case; Abridged Debates, Vol. 2, p. 462, and post in Ch. XXVIII.; also Judge Sutliff's argument on this ground against the doctrine that a case arises under this provision as law acting on the States, 9 Ohio, 244, and ante, p. 527.

any case or controversy simply as founded on their own sovereign promise or guaranty in the Constitution.'

If a distinction is made between the United States and the national Government, and it is said that the latter is bound. under the Constitution, as a law proceeding from a sovereign author, and that this law creates a relation between that Government and the demanding Executive of a State or the claimant owner, the same argument still applies against attributing to the national judiciary power to apply that law as in a case between the parties to that relation. The Government as an integer, existing in three departments, clothed with distinct functions, is the subject of the law. The judicial and executive functions cannot be exercised by the two departments against the integral whole, unless the consent to appear and submit to the action of the judiciary and executive has been given by the legislative function."

If, then, before Congress has legislated, there is no case or controversy to which the national Government or the United States is a party, to which the powers of the judiciary already extend, Congress cannot legislate to carry into effect any power of such judiciary in such cases or controversies; for there is not as yet any such power.

§ 791. It has not been pretended by any who support the legislation of Congress, as carrying into execution a power vested in the integral Government, that the power to be executed has been vested in that Government by any express grant in the written Constitution. The jurists who have maintained the existence of such power, have relied solely on their individual conceptions of the unexpressed purposes of the authors of the Constitution. The supposed power rests on implication, or is confessedly an implied power in the Govern

ment.'

The majority of the opinions supporting the legislation of Congress on this ground imply the existence of the power in

1 Story's Comm., §§ 1675-1678. 1 Curtis' Comm., chapters 4 and 6. Devereux's Reports of Cases in the Court of Claims, Appendix, p. 6. Compare Iredell, J., in Chisholm v. Georgia, 2 Dallas, 437, 438, and Wilson, J., ibid. 459, 460.

2 Curtis' Comm., § 56, Jay, Ch. J.; in Chisholm v. Georgia, 2 Dallas, 419, 478. Compare Story, J., in 16 Peters, 618, 619; ante, p. 470.

the Government from a previous implication of a duty in such Government; not a duty correlative to a right in a legal relation, on which cases within the judicial power may arise, but a political duty, above the ordinary administration of justice, and like other political duties of states towards private persons or other states. Whether Story's opinion may or may not be reconciled with this view, it seems to have been the doctrine of the majority of the court in Prigg's case, and that doctrine which is generally reaffirmed in the opinions which follow that case as leading authority.

Whatever may be the nature of the duty; that is, whether it is its political duty or its legal duty, it would seem that it must be admitted that if any duty is imposed on the national Government by the Constitution, the power to fulfill it is given by necessary implication.'

There is not the slightest argument offered in favor of the idea that the delivery of a fugitive from justice or from labor is a duty enjoined upon the national Government as a whole, or that the claim for the one or the demand for the other is to be made against the national Government as a whole, and the implication of such a power is at variance with the general idea of the Constitution, which invests the functions of sovereign power separately. So far as the Constitution is public law in the sense of a rule, it acts on certain public persons who may hold either the legislative, the executive, or the judicial functions, for the exercise of those sovereign powers which belong to the United States, or the integral people of the United States from whom the Constitution derives its authority. To the Government, as a whole, nothing is granted in the Constitution; no rights or duties are attributed to it in that instrument. It is the United States only as a pre-existing political person that promises or guarantees, and wherever they do this in the Constitution, they make law for natural persons,

But then the power to legislate in reference to the fulfillment of such duty would not be distinguishable from the general power over whatever claims may be made against the United States or the national Government. It is not necessary to presuppose a power in the judiciary department which shall thereby be carried into effect. Compare Judge Sprague's remarks on Judge Story's statement of the basis of legislation in Prigg's case, ante, p. 468, note.

creating rights and duties which may be enforced by the executive when the law is judicially administered.'

792. The only other implication of a power in the integral national Government is that founded upon the idea that these provisions are a law, in the strict sense, acting on the States as its subjects; though whether any court has actually supported this theory may be doubted.

If, indeed, any clause in the fourth Article is to be construed as a law in the strict sense acting on the States as its subjects (the second construction), there must doubtless be some person, distinct from the States themselves, who may have authority to enforce it upon them. But admitting that any clause has this character, it is still to be proved that the national Government is this person.

The power which, under this construction, is attributed to the national Government, cannot even be classed with those which Story, in sec. 1256 of his Commentaries, calls "resulting power, arising from the aggregate powers of the national Government." For among all the offices or duties assigned to that Government by the Constitution, there are none which severally, or in the aggregate, require the possession of power to act on the States, or to act instead of the States in fulfilling, within their several domains, the duties they may owe to the other States or to private persons."

So far as any argument has been presented, in any of the opinions cited,' the power to act on the States, or to act for the States, in fulfilling their obligations under this construction of

'The only place where the "Government of the United States" is mentioned is in the clause giving Congress this general grant of powers, and in the clause preceding-giving power to exercise exclusive legislation "over such district as may by cession of particular States and the acceptance of Congress, become the seat of the Government of the United States."

* There is much, indeed, said by Judges Shaw and Marvin, by McLean in McQuerry's case, and in Prigg's case, and even by Story in Prigg's case, like the support of such a resulting power. It may be remarked here, that if a power may be implied in the national Government from the coercive character of the provision, that coercive character should be shown from something else than the presumed existence of a power in that Government to carry it into effect.

In my own place I am ready to say, with Judge Sutliff, 9 Ohio, 275:-" After the most careful examination, I am convinced, beyond any reasonable doubt, that the case of Prigg, &c., is not a correct exposition of the law. On no principle of rational construction recognized by common law or sound reasoning, or by any rules of judicial decision, is it thereby shown that Congress has any power, under the Constitution, to legislate for the reclamation of fugitives from service."

these clauses, might as well be attributed directly to the national legislature, or to the executive. It will probably be admitted by all, that if these clauses are a law in the strict sense acting on the States as its subjects, which must be enforced by some person distinct from those States, the national Government is the person who may with the most propriety assume the office, since every power which the constituent people of the United States, the authors of the rule, are known to have delegated, they have delegated to some department or officer of this Government. But still any determination of the person who is to enforce this supposed law, is made by arbitrary opinion only, and cannot be discussed or examined as matter of law.

§ 793. The true character of these provisions, as public or private law, must be determinable by some juridical standard.

According to the first and second of the four constructions herein before described, these two provisions operate on the States as the subjects of the rules contained in them. According to the first, the obligation imposed is like that under a treaty between independent nations. According to the second, it is like that created by law in the strict sense.

But, according to the view of the nature of the Constitution which is given in the twelfth chapter of this work, it is not in any part, more than another, a treaty or compact between the States as independent nationalities. It is, throughout, a law for the States only in the secondary sense of the word law; that is, as it describes a condition of things, and indicates the extent of the "reserved" powers of the States. So far as it is law in the primary sense, or a rule of action, it is either public law in determining the powers and duties of those functionaries who, together, constitute the national Government established by it, or private law determining the rights and obligations of private individuals. The Constitution does not create relations in which the States are, in any legal sense, the subjects of rights or obligations, and they cannot be the subjects of the rules contained in these provisions;' though, as evidence

1 Sutliff, J., 9 Ohio, 316, see ante, §§ 359, 395. In § 359, on p. 423 of Vol. I. of this work, the public law contained in the Constitution was, inadvertently, described